Firing OK if FMLA return date isn’t honored

A doctor diagnosed law firm employee Shenika Jackson with chronic depression, fatigue and anxiety. She asked for and was granted 12 weeks of FMLA leave.

A few weeks before her expected return date, the law firm called Jackson to confirm when she would be returning. Jackson said she hadn’t been cleared yet, but that she would provide a medical release by the return date. The firm’s HR rep warned her that she would be abandoning her job if she didn’t show as scheduled.

Jackson, indeed, failed to return. Instead, she sued, alleging she had been denied reinstatement under the FMLA and a reasonable accommodation under the ADA. But in court, evidence showed Jackson never indicated she needed more time off or a reasonable accommodation. She didn’t claim she was disabled until after her return date.

The court tossed out her case. It reasoned that her employer did nothing wrong. Jackson was simply a no-show who never asked for an accommodation or explained that she thought she was disabled. (Jackson v. Wilks Arts, No. 08-0800, DC DC, 2008)

Advice: When an employee goes out on FMLA leave, set a return date and stick to it. If she doesn’t show and doesn’t ask for an extension or a reasonable accommodation under the ADA, you are free to terminate her effective at the end of the leave.

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